The John S. McCain Opioid Addiction and Prevention Act

ETA: The Disability Justice Initiative tweeted today this: "Props to @SenGillibrand staff for sitting down & listening to members of the #disability community today. We look forward to continuing the #PainManagement conversation in a way that limits misuse without harming the #disability & #ChronicPain communities."  

Senator Gillibrand received some strong negative pushback when she announced support of "The John S. McCain Opioid Addiction and Prevention Act"  (he sponsored it, thus the name, but such naming is tedious -- how could anyone oppose something named that?).  She got so much pushback (and not just on Twitter) that she felt it necessary to respond.  Not surprising when people cited it as simply disqualifying (anyone who did so was not really too gung ho for her anyway, I would argue).

[One person responded to a comment I made about it by saying it would likely "kill" friends of his.  Yeah.  Tad overheated there. I can say that since (unlike my Twitter and blog comments some places) no one actually reads this blog. Reading into the law, including my own state's policy, how exactly will this proposal "kill" people above and beyond current practice?]

What is the problem here?  Looking at the summary, we are told that  the "bill would create a seven-day prescription limit for opioids so that no more than a seven-day supply may be prescribed to a patient at one time for acute pain."  The term "acute" received some pushback since the inference from references to wisdom tooth removal and the like was that it was something that would be completed in seven days.  This suggests the limits of official Twitter snapshots of proposals, perhaps.  Anyway:

Acute pain is a type of pain that typically lasts less than 3 to 6 months, or pain that is directly related to soft tissue damage such as a sprained ankle or a paper cut.  Acute pain is of short duration but it gradually resolves as the injured tissues heal. Acute pain is distinct from chronic pain and is relatively more sharp and severe.

That is just a quick find but gets to the open-ended nature of the term.  But, the summary of the provision (contra to one Twitter reply that I myself replied to without getting a response)  says that the person still can obtain more supply.*  Gillibrand cites her own state as a model of the law, something reply after reply seemed to skip over, and I looked it up.  Yes:

TO FURTHER REDUCE OVERPRESCRIBING OF OPIOID MEDICATIONS, EFFECTIVE JULY 22, 2016, INITIAL OPIOID PRESCRIBING FOR ACUTE PAIN IS LIMITED TO A 7 DAY SUPPLY.

A practitioner may not initially prescribe more than a 7-day supply of an opioid medication for acute pain. Acute pain is defined as pain, whether resulting from disease, accidental or intentional trauma, or other cause, that the practitioner reasonably expects to last only a short period of time. This rule SHALL NOT include prescribing for chronic pain, pain being treated as a part of cancer care, hospice or other end-of-life care, or pain being treated as part of palliative care practices. Upon any subsequent consultations for the same pain, the practitioner may issue, in accordance with existing rules and regulations, any appropriate renewal, refill, or new prescription for an opioid.

The proviso regarding chronic pain is also said by Gillibrand to apply here in some form (we don't get a link to the actual bill though given McCain supported it, some form of it should be around, right?). New York provides a FAQ.  One question specifically answered says that it is not necessarily the case that an in person visit is necessary to obtain a refill. This was an important concern. If a physician would otherwise supply a greater supply, would they not also extend without an additional visit?  The concern seems to be that many would be wary.  Thus, an essential issue here is detail.

Gillibrand voiced surprise at the opposition in part since she did not just make this up on the fly. It was looked at askance that she was co-sponsoring this with a Republican though one that from time to time comes off as sane.  As noted in the reply:

I wrote this bill in consultation with many experts and groups, including researchers, advocates, doctors, patients, and families of patients. It was based on CDC recommendations — and reflects a movement across the nation in which 15 states, including New York, already have laws that limit opioid prescriptions for acute pain.

One thing highlighted by the speakers at her rally yesterday is that she listens. I respect supporters who say this about her and take this seriously:

I have heard this level of criticism, and many of the concerns raised by patients and disability advocates were issues I had not previously heard. And I hear them now. ...

I am listening. I would be more than happy to meet with you to hear your ideas about how to make this bill better — and to ensure that it does what it was originally intended to do without harming patients. 

The proposal might simply be misguided. Perhaps, we should simply trust physicians here and that this is an unnecessary attempt to show she is properly fighting opiate addiction.  The breadth of "acute" pain alone suggests a certain gratuitous nature in requiring weekly prescriptions, even if merely by phone or whatnot. But, without more, even then, it seems a limited misstep. I respect those who are concerned that this will make it harder for people who need pain medication. This is not a trivial matter and it's part of a serious wider concern. Nonetheless, any number of policy tweaks have possible negative effects. Is this unique?  A reason not to support her?

Anyway, I do wonder how much it compares to my own state's policy. It turns out my own assemblywoman is on the Standing Committee on Alcoholism and Drug Abuse.  I am curious if she has an opinion of this proposal and if it overlaps with state policy. I sent an email to her but have not received a response.  It is granted that I could call up her office and this on me to some extent but if the office has a means to constant, they should be able to respond. Also, the questions are of a sort of detailed quality that the likely aide in her district office very well might not be able to answer.  Yes, I feel uncomfortable personally asking such things too. Kudos for those who do so.

I will try to continue to keep abreast on this issue. Doing a bit of due diligence like done here is not too hard and can be helpful.

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* The coverage might confuse people. One publication noted that the requirement covers "the initial treatment of acute pain" but then "medical professionals would have to confirm they would not provide refills to those prescribed opioids for acute pain." 

I take this to mean that each seven day supply is separate so not a "refill" but perhaps a person can read that to mean it is a one and done deal. Serial weekly supplies amount to a form of "refill" even if by form the doctor (without needing a new examination) gives a new script each time.

Kirsten Gillibrand

Went to see her official send-off outside the Trump Tower near Lincoln Center (NYC) with various good introduction speakers including her old roommate Connie Britton. Like her partially given her long experience fighting the good fight (accepting an impressive 30 something newbie is a bit of an insult and stop comparing people to the VERY low Trump bar) in D.C. Kamala Harris is new there. Warren not as much but I think she would do better staying in the Senate making policy. All three are impressive though. Gillibrand focused on domestic matters; she needs to give a good foreign policy speech. Nothing on judges or the Electoral College (Warren suggested disposing of it.) Is it 2021 yet?

Mild Compliment Results in Attack of My Use of "Often"

[A self-labelled Republican who also has "Never Trump" tendencies repeatedly makes bad arguments in quickie posts in a blog and his comments on how court packing would violate "constitutional democracy" if done right away after the 2020 elections are of that caliber. I and others explain why here. Near the end, I provided a form of the below, in part because another self-labeled conservative explained why he finally lost patience with a resident troll. Took him a few years though.]

Justice Thomas asked a question in an oral argument earlier this week, the first time he did so in three years. I mentioned elsewhere that my opinion that he asked good questions over the years, "often" on race issues. I clarified that I meant that of the limited times he asked questions (such as a sparsely used pinch hitter), he often in that subset did so. I think he should ask more questions partially for that reason, partially since it gives a chance for advocates to address his atypical views. Also, him not asking questions EVER comes off as rude to some people. It's an unnecessary affront even if he doesn't intend it.

(A discussion of the case and a link to an article that includes his questions, minus the latest, making the case can be found here.  The blog is an impressive coverage of the Supreme Court by some high school students.*)

I'm not a fan of Thomas' jurisprudence generally and opposed his confirmation on grounds of inexperience alone (the sexual harassment issue added insult; public integrity is something basic to members of the Supreme Court) and didn't think the question posed this time that good. Basically, he flagged in case where the prosecution was found to commit racial bias repeatedly and allegedly did so again in a sixth attempt to convict that the defense used peremptory challenges against white jurors. As noted by Sotomayor, not only is that side not "on trial here" but there were few black jurors to strike anyhow.  But, that doesn't change my basic sentiment.

This is all said because when I did so someone strongly refuted my comment on Twitter. I noted that I didn't support Thomas generally, but did in this specific way. (Looking it up: "He asked some good questions -- often in race related questions -- over the years.")

Okay. Well, what are examples of his horrible questioning? The person pointed to the questions he posed that very day. That doesn't really refute my comment. I get the idea the person had no actual knowledge of his questioning (I alluded to questions Thomas posed in cases involving the KKK and public usage of crosses as an example.) The person then attacked my use of "often," noting in effect it would be curious if anyone else in the universe would use the word that way.

I understand the reason people are loathe to admit someone like Thomas is right even when he says that Bryce Harper is a dweeb, but at some point this sort of thing is tiresome. After repeatedly going back and forth with the person, harping on my use of "often" led to a "mute" from me.

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* Some people, including some lawyers, ridicule oral arguments as pointless. Besides serving as the one time the general public gets a chance to listen (or see, in courts that deign to videotape) to the judges, there are other values to such arguments. Repeatedly, judges themselves have said so. I just read an old essay (found in a version of Judges on Judging") by Justice John Harlan II saying so.

At some point, I take them at their word -- they find oral arguments helpful. To toss it out there, one Supreme Court journalist suggested Justice Breyer might ask some questions with Justice Thomas in mind, the two sitting next to each other on the bench and at times chatting during oral arguments (see the High School SCOTUS interview with Chris Geidner).

SCOTUS Watch: It's Almost Spring Edition

There are various books on justices coming out (Roberts, O'Connor, Stevens [autobiography] and Thomas [later in year], after another biography of Ruth Bader Ginsburg came out last year. I suppose Sotomayor will also release some other autobiographical work or something too. Meanwhile, including by the person I recently referenced seeing, various criminal justice books are or did come out. For all you candidates out there.

Meanwhile, there was some Supreme Court action this week with another conference scheduled for Friday and more orals next week.  Following recent trends, there was news even when they only released orders. The big news is probably that they will take up non-unanimous juries (one state left though the case covers Louisiana, the John Legend supported change not retroactive).  Legend argued that they promoted racism, dissenting voices purposely blocked out as a matter of white supremacy. Unlike more popular non-usage of grand juries or civil juries for small claims, this has a good shot of going his way because it is an outlier to have a federal requirement not apply to the states.

The other cases are of interest as well including rules regarding the right to make an insanity defense. As she has over the years, Sotomayor also has a solo statement concerned about criminal justice issues, in this particular instance evidence a racist juror was involved in a capital case. The government was also asked to add their .02 in a few cases, including one involving alleged religious discrimination in employment. The latter issue has been something a few conservative justices have also flagged in various contexts though apparently not when someone was about to die.

whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry

We had two decision days. A thing that stood out was that the two Trump picks split in all three cases on Monday though only as a matter of scope on the big case of the day. The case had a somewhat narrow specific question regarding the statutory power to detain certain non-citizen aliens (including lawful residents; not just so-called "illegals") without bail hearings. But, as noted here, as well as the dissent (Breyer dissented from the bench for the liberals), there is a wider principle and likely future effect involved. Likewise, to the degree the provision can have various possible meanings, what might be deemed "Footnote 4 constitutional avoidance" should be guided more Breyer's way.  This is so even if the ultimate solution here is changing the actual law.

Kavanaugh wrote for the Court with Gorsuch writing for the "High Federalists" (himself, Alito and Thomas) in a maritime liability case.  It's useful to remember that (like in today's special case so bad everyone but maybe Thomas can join in against racism) the problem with the two Trump picks was not that they will always be wrong.  Kavanaugh was a divisive partisan hack who bullshitted (at best) Congress and had a strong case that he was a sexual predator.  Gorsuch filled a stolen seat while being a run of the mill Federalist Society baby (plus, he comes off as smarmy).  So, e.g., maybe Gorsuch will turn out (inspired in some way by being on a court of appeals covering over seventy tribes) friendly to Native Americans. Not going to suddenly handwave how he got there.

There was less heat in today's opinions, one a per curiam (with merely Justice Thomas not joining the punt), the other a unanimous debt collection case.  My interest there was Sotomayor's brief concurrence in effect saying "eh ... not sure ... but the majority does the best job we can and if Congress thinks we are wrong, they can fix it."  A honest response to various statutory questions which result in what is a basic (if less exciting for most) part of the justices job -- someone has to settle these questions. They very well might not be right each time, but they are "Supreme." Plus, in these statutory cases, a legislative fix (if at times hard to come by) is possible.

Notable oral arguments. Along with next week, the Court deals with some more racial and political gerrymander stuff. The results are unclear. Next week also brings the sensitive question of the reach of "deference" to federal agencies. There is a range of options there as well.  As noted above, today also involved an apparently blatant case of racial discrimination in jury selection, which gives conservatives a chance to join in against racism. Maybe, Thomas figured he was the only one somewhat sympathetic and that is why he asked a question. He last did it in regard to the reach of a regulation on guns with only Sotomayor joining his dissent (and not the 2A portion).  He has asked good questions in the past. And, even if they are bad, doing so provides advocates a chance to respond to his atypical views.  OTOH, maybe Breyer serves as his mouthpiece at times?

Spring begins 5:58 P.M.

Happy Holidays! (March 17-19)

St. Pats (Irish), St. JP (Irish/Italian mutts), St. Joseph's (Italian).

Betraying Big Brother: The Feminist Awakening in China

I added two books to the side panel covering civil rights history, one involving an infamous blinding of a returning black serviceman in the 1940s, and the other covering the feminist movement in China in recent years. A video of the "feminist five" is included and feel it necessary to also cover a certain "armpit" contest referenced in the book.

Two More Book Events

I really don't take advantage of what the city has to offer but have my moments. Strand Bookstore again provided an author appearance (this time with the added value of former president of Planned Parenthood, Cecile Richards) for a $15 gift card or the book ($25). Not sure Amber Tamblyn's feminist manifesto is worth reading, but appreciated the opportunity. The NYU panel on a criminal justice book (with the author, activist Shaun King and a professor) was better. Not only was it free, but they had a free lunch (choice of sandwich [hummus for me] with cookie, chips and water/soda). Plus, doggies at a local dog park.

And Also: Nice this was public again but the usual b.s. on the "problems" of cameras and no, Justice Kagan, you don't explain all your decisions. Questioning seemed a bit brief given the opportunity. Let's see how the being considered ethics rule goes.

SCOTUS Watch: Future of Religious Clause Jurisprudence

There has been a lot of interesting actions outside of regular opinions (relatively unsurprising, including the three today, though RBG having two shows she was active during her time "off"), including today. Kavanaugh (with Alito and Gorsuch) agreed in not taking a case that denied preservation grants to religious buildings in particular, but flagged their interest in broadly defining equality in funding matters long term.

He (continually a blot on the Court and the U.S. Senate), however, noted special facts here and the value of letting the issue "percolate" in the lower courts some more. I continue to respect Sotomayor's dissent in the Trinity Lutheran case, but either way, surely government funding of a church is more controversial than playground funds! I also note an interesting article (h/t Religion Clause Blog, which has a lot of resources) entitled "Christian Legislative Prayers and Christian Nationalism." Also, this piece on the Peace Cross oral argument (the lower court opinion is also worth reading). Patent case also taken.

Also: One case had some interesting aspects, including the two most conservative justices on the side of the workers in dispute involving a relatively small sum but broader implications. The company argued (FN2) the overall solvency of the workers retirement system was at stake. The dissent also took a dig at "Chevron" deference, which wasn't really necessary to decide the matter here. Note the brief/filings link.

Sen. Biaggi Budget Event

I simply have not paid much attention to local government, which is on me but also because there was no real neighborhood invitation to do so. For instance, where are the flyers or notices of local meetings or meet-ups with members of the city council or state legislature? I think safe seats hurts the situation more so. Two upsets involving my own district offers a chance for me to pay more attention. Sen. Biaggi noting the below event was new underlines my point here on both fronts.

I went to an event at Manhattan College (which is now in the Bronx) where twenty seven speakers (I briefly took notes) told state Sen. Biaggi (who upset Jeff Klein, who led the "independent Democrats" who caucused with Republicans) talked about their concerns. Multiple union representatives supported a tax break to promote tv/film. Multiple people had some sort of connection to religious groups. Most represented some group but each as a whole did a good job promoting their causes. It was an educational exercise in civics though one media representative was a tad more negative (including saying Biaggi, basically as a newbie, will bring in a lot less money than her predecessor).

Nadine

This was on late night on a commercial movie channel -- movie is under ninety minutes, so it's fairly crisp and has a great cast with Kim Basinger shining. From late 1980s. I also saw part of the Black Klansman movie and it was rather loyal to the book. Actually, rather straightforward for a Spike Lee joint. A bit bored with it. Saw good Green Book documentary (on actual green book) on Smithsonian Channel. Is it really March already?

Billie Coble Executed

With twenty-five executions last year (dollar and a dream ...), it is probably quite possible for anti-death penalty justices (they can spread it around) cover each one this year. A three-time killer (a family matter, but one was a police officer) might not seem much trouble legally or otherwise. The system is the problem, but even this specifically can be. He was on death row for thirty years: that alone is a problem Justice Breyer et. al. covered. And, there might be due process issues. Final appeal rejected without comment and he was executed.

SCOTUS Watch

A few oral arguments, including a potential big one regarding religious displays regarding a "peace cross" that hopefully will be decided narrowly though not likely to go the humanist's way. Roberts again the swing vote in a limited win (death penalty case) for the liberals. Less close defendant win with Thomas/Gorsuch (but not Alito) adding a bit in the dissent questioning the constitutional right to state provided lawyers on originalist grounds. Win for international organizations with Breyer with a solo dissent that is most interesting regarding his purpose based approach that questions textual analysis of the majority.

A Day in the Life of Majority Rule

The Michael Cohen testimony was not likely to be earth shattering, but hearings need not be to be useful, including to air things out to the general public who are not political nerds and get a sense of each side. Plus, some useful stuff will come out, including bringing things back front and center. It's a race, not a sprint. Plus, AOC et. al. had great moments.

Meanwhile, a background gun check bill that passed the House, basically on a party line vote. Using a procedural maneuver [people upset about that, but total majority control is not a good approach either], Republicans got a limited win by getting a tack-on that requires the federal background check database to notify Immigration and Customs Enforcement (ICE) when an undocumented immigrant tries to buy a gun. Swing district Dems went along.

Precedent suggests it will be blocked in the Senate, but the facts are on the record for when sanity rules there too.

ETA: Remember too that Cohen also testified behind closed doors.

Oscars and Supreme Court Watch

Didn't see the beginning, but the second half of The Oscars was pretty good and guess not having a host isn't a big deal. (Maybe, just have some representative introduce it briefly?) with many nice black, women, gay/lesbian friendly moments. And, then they had to ruin it by ending with Green Book winning? Oh well. Meanwhile, the Supreme Court in a brief per curiam (Sotomayor concurring without opinion) says you can't count a judge's vote after they died, even if the panel "decided" beforehand. Seems right though maybe merited a bit more contemplation. Also, district court held all male draft unconstitutional. RBG smiles.

ETA: I saw Juliet, Naked (no nudity) on demand and liked it. Rose Byrne very good. [To add two more.] Saw I am Not Your Negro on DVD; well, half of it -- it seemed a bit rambling and half of it gave a good feel of the general tenor. Good. Saw the lead of the foreign film Two Lives in other films (such as Nowhere in Africa) and that too was a half movie watch. Have less patience these days. Half was good; skipped to ending tbh. Felt a tad obligatory.

The Bell Jar

The fiction of Mary Boykin Chestnut, of Civil War diary fame, was hard going so I put it aside. Did finish The Bell Jar, using the version shown here (with "PS" author background material). Overall, I liked it. Smooth reading, some insights of the young characters' struggles etc. A bit sudden fall into madness after she comes home and the latter part of her confinement (when she was on the way to recovery) might have been fleshed out better. But, it's a deserved classic. Couldn't get into Sylvia movie, which I watched when it came out.

And Also: Mets Spring Training started today. Oscars tomorrow; haven't been interested in them for a few years. I used to be a regular viewer but also watch movies in theaters much less too. The Favourite being one I actually saw.

Excessive Fines Clause Incorporated (Explicitly)

Perhaps because they already did in dicta (if that; McDonald v. Chicago however ignored the case), the Supreme Court thought it obvious that the Excessive Fine Clause should be incorporated, doing so in an opinion under ten pages. The opinion is being cited as important given it included within its ambit civil asset forfeitures, but that too has been cited in the past. This was noted in the opinion to cite how weak the state's claim was in trying to argue they don't count. RBG wrote the opinion and seems to be doing well. But, maybe so. Also, not sure seizure of his land rover was that excessive for use for a felony. Borderline. Yes, it is 4x (but is that too much?) the criminal penalty, but the usage seems to be notable.

Also: What's left? Third Amendment (Griswold dicta, never pops up, but bet it can someday), grand jury (many states don't use them; doubtful), unanimous jury trials (one state left; quite possible, cited as a joker in opinion) and Seventh Amendment (civil trials; also broad reach).

Update: And, does it matter if we use the Privileges or Immunities Clause? Depends on how limiting it turns out to be. Justice Gorsuch already restrained the feds regarding immigrants in part by concerns about vagueness. Some limits on power will protect liberty of non-citizens. Also, including by originalist arguments, equal protection concerns should apply to them, including as a matter of due process. If this sounds substantive, it shows sneering at "substantive due process" is you know a bit stupid. Selective application likely.

SCOTUS Watch

The Supreme Court decided to take that census question case after all, the clock on writing the forms running out, even though a lower court opinion could have mooted the question. Unclear how broad the opinion will be. The justices, via per curiam, attacked a lower court for not following their precedent. Roberts, unlike in the abortion case, expressly said he was joining for that reason. Kavanaugh (unlike the other three) silently went along. Thomas flagged he didn't like NYT v. Sullivan, at least as applied to public figures like a Cosby accuser. Originalism aside, he might have a point. Clean Water Act case taken.

And Also: Sanders announced. Liz Warren fills his role, minus additional baggage.

Note: My comment is limited to the reach of current law to public figures. If strict defamation rules for people like a Cosby accuser are somewhat weaker, it very well might be acceptable. Public officials are of a different caliber. Maybe not, but worth thinking about.

Patriots and Cosmopolitans: Hidden Histories of American Law

I enjoyed his Lincoln’s Code: The Laws of War in American History and after comments by him was referenced on a blog, I found this earlier book. It covers James Wilson, South Carolina freeman Elias Hill, feminist/pacifist Crystal Eastman (skimping her later years), professor Roscoe Pound and lawyer Melvin Belli. It is a bit too academic, but that is less of an issue in the second and fourth sections in particular. As a whole, interesting vignettes.

And Also: Eric Segall's Originalism as Faith is a case where reading his blog stuff/articles basically give you a feel of the topic. And, a summary (like a few pages why such and such result isn't really originalism) is somewhat underwhelming. Originalism ultimately causes my eyes to glaze over -- it is like counting angels on the head of a pin and a lot of self-righteousness [which is one of the most annoying aspects of it] on a foundation of sand.

Satanic Temple Religious Liberty Argument vs. Abortion Law Fails

And Also: Somewhat related, perhaps, is the whole Rep. Ilhan Omar kerchuffle based on a tweet where she said AIPAC (the Jewish, or rather some form of them, lobbyist group) is "all about the Benjamins." She respectfully apologized, which as this Republican noted, basically settles the matter.

He is right specifically on how sometimes a comment is going to cross the line, especially one said on the fly.  We say loads of things; one's overall record should be our guide. She brings a good perspective to Congress and will get pushback for saying things seen as unpleasant. And, unfairly (hey, Trump!) she will get some special attention, so to continue to be a respected voice, will have to take a bit more care. She can handle it.

In addition to the 72-hour waiting period, Missouri’s informed consent law requires a woman to review a pamphlet about fetal development, including language that says life begins at conception. The woman must also be offered the chance to see an ultrasound and hear the baby’s heartbeat.

Not surprisingly, the Missouri Supreme Court rejected (the quote is from the article) a challenge by a member of the Satanic Temple to the state's informed consent abortion law. Rejecting both an Establishment Clause and a religious freedom challenge.

"Satanic" here is sort of misleading branding since the mission "is to encourage benevolence and empathy among all people, reject tyrannical authority, advocate practical common sense and justice, and be directed by the human conscience to undertake noble pursuits guided by the individual will." This probably is the point though I think there is some serious content behind their ironic name (less so Pastafarians or something).  This is also the case, as I noted in the past, for "Universal Life" ministers that can be in effect self-ordained online and seen as something of a joke but later are popular wedding officiants as seen by a range of NYT wedding announcements as expressions of individual beliefs.

Anyway, the underling religious arguments are valid and especially with stronger RFRA claims (that go beyond what the Free Exercise Clause requires), there is a place for them.  Harris v. McRae rejected specific Establishment Clause claims, not all of them, and didn't even reach the Free Exercise Clause for standing purposes. The dissent ignored the issue though Justice Stevens later flagged the first issue in various opinions. Also, in Planned Parenthood v. Casey, the fact abortion is basically a matter of conscience was also recognized. The claims here might be seen as "hey if Hobby Lobby gets protections, why not me" tit for tat that just underline the problems with the doctrine, but there is something to it.

The basic point is that the choices involved in abortion are deep down matters of personal conscience that quite often don't just have a by chance overlap with religious beliefs. Take the "human being" and "life at conception" message that is part of the case at hand. These are not scientifically neutral statements of fact or something.  As expressed here, maybe the religious liberty claim is too weak (though if the state requires materials with it, the opinion is weak arguing it isn't really the state's message as such). But, it is still bad policy to require such divisive moral tinged messages, the words for many not applicable to fertilized eggs.

The overall question of abortion overall is even more freighted with religious significance and burdening the rights of some here is not only a free exercise problem.  Again, maybe this specific case (that avoided the earlier standing issue because the woman wishing to choose made the claim, not some organization deemed not to have standing) is weak. For instance, just providing an option of an ultrasound (as compared to a law that requires it) is arguably protective of religious liberty.  It still might be a problem because it is burdensome to clinics on other grounds.

Finally, as a state case, federal doctrine is not all that is at stake. The three day waiting period in general very well might be unduly burdensome, especially given specific facts, even under Planned Parenthood v. Casey. And, Justice Stevens' concurrence there specifically pointed out the problem and there the law was for one third as long:

The mandatory delay thus appears to rest on outmoded and unacceptable assumptions about the decisionmaking capacity of women... A woman who has, in the privacy of her thoughts and conscience, weighed the options and made her decision cannot be forced to reconsider all, simply because the State believes she has come to the wrong conclusion.

Note again how "conscience" along with privacy/liberty and equal protection concerns are raised in this context. The line between "conscience" and "religion" is often thin,* especially when a person specifically raises it in a religious context such as here.  The state court rejected the claim, however, because the three day waiting period did not have the purpose or alleged effect of interfering with her religious liberty.  If someone had to wait three days to choose what religion to be baptized in, such an argument might be a tad weaker. Again, I think the argument  has merit, but the best argument is against such a long waiting period in general. Still, WHY it is a problem will have a religious component.

A truly unduly burdensome abortion regulation very well in somewhat borderline cases can be more so if the person also has a religious liberty claim. This also would arise if for some reason state constitutional claims specifically are being made. Finally, however, the argument is likely best made when stronger ideologically based materials are at issue. The Supreme Court treating crisis pregnancy clinics differently here need to infect lower courts.  Nonetheless, like back in the day how religious liberty was a factor in such things as integrated marriage, religion is part of the issue here. And, it is fine -- including to show how an evenhanded application of RFRA would work -- to push the issue.

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* We often hear of "freedom of conscience" though traditionally that was assumed to have religious content. There is some concern that "conscience" is too open-ended, especially for certain types of exemptions. But, that often is a matter of the exemptions themselves (see, e.g., for vaccines). 

Equal Respect v. Being an Asshole

Justice Kagan in her dissent involving town meeting invocations cited their legitimate reach: “speak of the depths of [one’s] life, of the source of [one’s] being, of [one’s] ultimate concern, of what [one] take[s] seriously without any reservation.”

Various governmental bodies include non-theistic invocations, but some people want to be assholes about it. Pure separation of church and state in practice won't happen for various reasons, but equal respect at least should be our goal. This works both ways -- have seen some liberals scornful of "religion" and I understand given how it is weaponized to harm (a few simply are skeptics). But, allies come in all shapes and equal respect should be our rule.

Lincoln's Birthday

Great speech with continual relevance. Note he was a bit cute -- the Republican platform was a threat to the South/slavery -- he wasn't some professor giving a nuanced take here. But, the in depth discussion in a day when the Founding were still in direct memory is still powerful and raises themes that still arise. A passionate fact-based attack.

Amy 2020

Harris excitement and Warren had passion with an economic focused message; Klobuchar was more of a sedate Midwest nice with possibility of just doing her job and being the President for everyone (Middle America?). The snow was a nice touch. Her laundry list of the usual proposals didn't do much for me. Earlier there was some reporting of her being an asshole boss which is valid though I'd like to hear about the others in comparison. Usual concern.

When Christians Were Jews: The First Generation

I noticed Lent starts a bit late this year, but read this book now anyway. Not going to respond directly to the review except to say that yes it could have addressed critics a bit more but did address matters (and said so) before in more detail(e.g., full books on Jesus and Paul). In that respect, it wasn't comprehensive or fully satisifying, but was overall an interesting read. Bart Ehrman, who has also wrote on the basic topics, had a supportive blurb.

SCOTUS Watch: Late Night Edition

Chief Justice Roberts (the subject of an upcoming biography, which might be subtitled "Part 1")  is often seen as a crafty type concerned about the long game and the overall integrity of the Supreme Court.  The two late night (after 9PM, admittedly not that late for the last minute death penalty order) actions might be seen as a mixed bag in that respect.

As tends to be the case, the capital case of Domineque Ray (spoiler alert: he was executed last night) had various due process concerns. But, the matter at hand was a rather novel one -- could he have an imam present at his side instead of the Christian minister provided by the state. To be clear, it is not about only disallowing Muslim religious personnel.  And, some years ago, the Supreme Court in Holt v. Hobbs protecting Muslim prisoners who wished to wear short beards for religious reasons.  So, this seems like a fairly easy way for the Supreme Court to show they are consistent regarding religious liberty claims, instead of such reactions.  Especially after the travel ban ruling.

The not overly liberal Eleventh Circuit basically so agreed in a strong opinion, holding that the result here favors one religion over another.  It is unclear why the state could not tweak its process to carry out the prisoner's wishes.  Thus, Justice Kagan (who rarely dissents in these late execution appeals) ala her Town of Greece v. Galloway dissent, provided an eloquent call for religious liberty, evenly applied.  The majority (and often responses to these orders are merely "denied" or "we dissent") merely noted that the challenge was too late.  Kagan dealt with that claim as well.

This case suggests the difficulties with usage of state religious officials, the specifics of this state's practices perhaps novel. This was also an issue, to again return to the legislative prayer conext, in the 1980s case of Marsh v. Chambers. Justice Stevens specifically noted that usage of a single chaplain of a particular faith for so long had a tendency to favor one religion in practice. Kagan's dissent in the later case was similarly moderate, accepting usage of legislative prayer generally, but critiquing the nature of the practice at hand. Religion is touchy and in practice nuance is key. Bending over backwards should not just occur when birth control is involved.  The result is religious favoritism.

[It perhaps can be the case that the justices missed the religious liberty claim because all they saw was a late appeal in a death penalty case. They did protect prisoners in general, but this was someone due to die in a few weeks. Maybe.  But, this didn't impress many who were appalled, including some who are conservative in general.  Finally, compare the majority here with Justice Alito and Thomas flagging the religious and moral concerns of a constitutional nature in allowing non-lethal weapons. Which I respected; I even sent Alito a letter thanking him.] 

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The case getting more attention involved handling an appeal upholding a restrictive abortion law out of Louisiana that seemed blatantly in conflict with a 5-3 Supreme Court precedent from a few years ago. The lower court en banc (with a strong dissent) argued there were differences. How much that really matters is dubious but it flagged a quite possible means of not totally overturning Roe (Casey) but severely weakening it in practice.  When a state might very well have one clinic, a "fetal heartbeat" law is not the only way to stop abortion rights in practice. There is a difference here, to be clear, but rights are not an all or nothing affair either. The test is after all "undue burden."

Since the membership of the Court has now changed, some are basically merely waiting for Roe to be gone. I think the rhetoric is a tad overblown, admitting that I can't get pregnant or anything. Again, we are talking about many laws that severely burden women here.  This drip by drip approach has occurred since the 1970s.  This case to me seemed like a landmine since it offered a chance for five justices to provide, as the law of the land, a weaker test (cushioned in so-called neutral fact based language or not). Not taking the case would send a signal, but not change the law.  To me, this might be a best of a bad situation choice.

What we got last night was in effect a "to be continued," which on the abortion rights side per one account was "not nothing" but a limited win at best. The majority didn't even provide a brief comment this time so the reasoning is basically by implication.  Basically, Roberts (and the liberals) appear to be saying that the law is dubious enough per the earlier precedent that it should not go into effect while the case is pending. The rule tends to be that this is done when there is a strong case of reversal, at least when the alternative would be burdensome to those affected.

It is rather risky, however, to assume that Chief Roberts would serve as the fifth vote to strike down the law. As referenced here, there is an argument that the state is more protective of the rights of doctors and abortion providers than Texas was, an argument that long term would seem to be a good "out" for Roberts.  A sort of "minimalist" approach.  The article also suggests how much respect we should give to Kavanaugh's "I'm just being reasonable here" dissent.  If the law is unconstitutional, delaying striking it down, providing more chances for burdens because maybe the state will play nice, is basically the whole thing the original ruling meant to avoid. The dissent, however, very well might foreshadow the eventual approach on the merits.

The result sends a message to other judges that similar laws are at least dubious though again it has no formal legal meaning in that respect. It also shows that Roberts does not want to speed up things in regards to abortion rights. We will have another partisan gerrymandering case soon, in part since the Supreme Court has less ability to avoid certain voting rights cases. They took a Second Amendment case for full review after around a decade.  A religious display case is coming. Hot button issues now that we have the start of a Trump Court will come. But, like driving on urban streets, Roberts rather it go a bit slow.

So, unlike the first case, this is a "to be continued."

Baseball Approaches

Moving past Super Bowl travesties, pitchers/catchers are due to report soon and we are about two weeks from televised Spring Training Mets games. Also, there is talk of a lot of changes including (whenever it comes) ending the DH in the NL. Ugh. There is also talk of each pitcher needing to face at least three batters. What of the LOOGY? Changes don't really sound that positive. Ending defensive shifts? Eh. Meanwhile, The Bookshop was a tad too precious quirky for me but nice lead and lack of a deus ex machina is honest enough.

And Also: Book pile reduced a bit by a couple more not doing it. More to come. Skimming long RBG biography; doesn't seem worth a full read though has some interesting tidbits.

Black History Month

Short month, so the news started early. Cory Booker declared his candidacy for POTUS, his specialty criminal justice, being a vegan and enthusiasm. Problems would include some connections to money and education ... and coming off as a bit too much of a showboat. Meanwhile, after remarks related to a proposed abortion bill, the governor of Virginia (D) got in trouble for a racist medical school yearbook from the 1980s. I'm wary about such ancient history (not attempted rape either) forcing him out though his attempts to explain it away today did him no favors. Plus, guess in this day and age, the taint means he has to go.

And Also: No Human is Illegal is about an immigration lawyer in the age of Trump.

Update: The governor just might hold on while someone else third in line mentioned (handling the announcement better) that he put on blackface himself back in college/1980. The lieutenant governor is accused of a sexual assault that happened fifteen years ago and of course came out AFTER his election in 2017. The responses (some at least) are starting to get a bit more reserved, wary about requiring people to resign (over focus on elections as deciders). My immediate wariness is starting to seem a good call. But, let's wait and see.

First Execution of 2019

(ORDER LIST: 586 U.S.) WEDNESDAY, JANUARY 30, 2019 CERTIORARI DENIED 18-6848 JENNINGS, ROBERT M. V. TEXAS (18A540) The application for stay of execution of sentence of death presented to Justice Alito and by him referred to the Court is denied. The petition for a writ of certiorari is denied.

As expected, two pro forma orders were posted last night at the SCOTUS website to smooth the way for the execution of a cop killer.  Like that old story, he is sort of like a lottery winner, one of a few people among the many murderers (including some who committed very heinous crimes) scheduled to be executed this year. To take a for instance, no one was executed for over five years in Mississippi, not exactly a liberal state. 

From what I can tell, there were various procedural concerns, but what stands out for me is the thirty year lag period.  Justice Breyer, such as in his dissent when he flagged the death penalty itself as probably unconstitutional, has repeatedly cited this as a specific problem. Justice Stevens and the courts of various nations also did so. I think it would be useful if a justice dissented in each case myself to touch upon the specific person being executed, but Breyer does not do this.  He has brought it up repeatedly though to point out the problems. Multiple reasons: delay of justice, harsh treatment on death row, trauma of such an open-ended extended limbo and the question of simple justice of executing someone for something they did so long ago.

(People are cynical about such claims since they largely blame the defendants themselves for extended appeals. As people have noted, this is a bit too glib. California has a large death row but only something like thirteen people has been executed in large part since there is no will from the top to help things out. The extended appeals repeatedly address real problems with the system. Realistically, however, it is hard to imagine due process alone is why it takes decades to execute someone.)

There are a few cases of crimes in prison, but it seems to me a bit dubious to not just let these people continue to be in prison as they have been for decades. And, thirty years? I think that is long enough even for killing a police officer.  It would not surprise me if there was something wrong with his case specifically that made executing him a due process problem. But, I'll grant that away. I also question the whole "worse of the worst" test here, comparing it to some of the real heinous examples. Again. I'll rest on principle here. This includes the fact a system is in place, not some cases that we might be willing to accept.

One criminal justice expert made it known that he thought too much emphasis was put on the death penalty given so many other people were being harmed in our criminal justice system. Plus, he thought in the worst cases that it was basically justified, though he would have it be a federal prosecution since they had more resources.  (I stopped going to the person's blog since he was in effect a Trump apologist, belittling how bad he was.) I question how bad the situation is -- there tends to be overlap between capital and non-capital crimes here. See, e.g., the treatment of those prosecuted as minors.

Plus, simply put, loss of life itself will matter more. The concern is fair though I'm not sure how bad the situation truly is -- e.g., the Supreme Court has taken numerous non-capital cases over the last few years. Other than debate along the edges, what has it really done in the capital punishment area?  Some raised the possibility of the end of capital punishment. I do not see it. There continues to be a desire for at least the possibility in special cases.  Two justices were willing to go further. I question if a Justice Garland would have went along. OTOH, he might have accepted more limits on the system in place. Well, that ship has sailed.

Next execution scheduled in February.

I Do Taxes

I did my and someone else's taxes recently.

We both have easy times of it but one other person I do it for is much more complicated (one thing involving pensions and such is truly confusing, the website giving you some sort of chart to fill out).  New York basically requires people to e-file except in certain circumstances though like declaring sales taxes, they don't really enforce it to my knowledge. And, for many, it won't be free using most services. TurboTax to me is pretty good.

A blog post* and the resulting comments led me to opine:

I just did my taxes as well as someone else's so this whole conversation is somewhat topical for me personally. It is striking how many different things pop up in the tax code, in my case three levels of government. Government itself is basically about taxes on some level -- the parliament at core about the power of the purse.

Some years ago, a progressive blog or something reminded us that rich people are rich on the back of us all. It's akin to someone I know upset about needing to pay for local services when he isn't living there. As if the roads etc. do not benefit him. Or, the idea people are paying for health insurance for "doing nothing." Patently absurd.

This talk about democracy underlines, as the House debates the "for the people" voting legislation (see Rick Hasen's piece in Slate), that we are again at a moment essential for the fight of democracy, comparable to the fight for voting rights of blacks and women. The power the rich have these days, ever more so given economic policy over the last few decades, is an important part of this. The discontent that helped elect Trump is real. The problem is to address it without further enriching the plutocracy.

What more attractive person ala Marty Ginsburg will play be in the movie?

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* Dorf on Law is an interesting blog with contributors with very different styles. The person here favors long, rather boring if erudite posts that often focus on economic issues. I like the style of Michael Dorf's posts the best. His wife tends to have more academic posts though her passion shines thru them as well, particularly about gender and animal issues. Eric Segall also comes off as more argumentative and less academic though when he goes into "academic mode," you remember he is a law professor too. 

The commenters are mixed too. One who used to occasionally provide argumentative conservative comments with a bit of venom is now in the Trump Administration. One of at least two I have engaged with online.

Constitutional Duty Without Courts

Indeed, the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise.

Justice Kennedy* saying this in his concurrence to Trump v. Hawaii (the travel ban case) is rightly sneered at but I hold to my remarks posted in response to a blog post. Ditto the reply, which seems to skip over the part where I'm not defending Kennedy and in fact added with emphasis that he was a bad messenger.  Why?  Well, a key part is that the message works a lot better when you do the job in clear cases.  I repeat:

Kennedy's concurrence matters to executive officials who give a shit.

The sanity in exile brigade -- see various former government officials on Twitter -- repeatedly cite how back in the day (pre-Trump Administration) some relevant agency had rules they followed that provided some limits and fair practices. Sham prevention.

The Constitution tends to be under-enforced especially since stuff isn't reviewed in the courts, it takes a long time when it is or some presumption of constitutionality often hides illicit behavior. Kennedy's preaching there is relevant.

But, judges also have a duty to deal with clear error.  Failed here.

Kennedy over the years has been pretentious in his civics lecturing, but the response upset about that ... was he upset when Brennan did it?  Judges repeatedly use separate opinions in particular to send messages.  "Talk is cheap."  Yeah.  Again, they "failed here."  Preaching about how officials have an independent responsibility that is and should be honored even when judges have a hands off policy works better when they do their jobs. It's a presumption of constitutionality.  It's a quid pro quo, so to speak. The concurrence itself leaves open further review of specific cases.

People inclined to follow his message know it already. Eh. I have repeatedly seen people focus on the courts alone to protect our rights as if a loss in court ends the matter, the rest just policy.  And, these remarks are partially meant for the general public in some fashion.  No one really is listening? Fine. Don't quote opinions of judges you like either then.

Anyway, it isn't black/white.  It is a continual complicated process and in our system there are loads of interrelated parts involved. The basic presumption of constitutionality principle entrusts democracy as a whole with its various parts (toss in the media, private organizations and so on) to protect our liberty as a whole.  We trust the responsibility of public personnell here, something to think about (over drinking beer or how you want to say "fu" to the man) at election time. The matter is especially such in special areas like presidential control of foreign policy or agencies.  Special red flags like animus [a Kennedy special] and violation of normal process are in place. And, other things, see various arguments over judicial review.

The core problem here is that TRUMP is the person ultimately involved here. Just look at the very caption.  That preaching is only so useful here, even if ultimately he isn't the one carrying out this policy. But, as the blog post referenced shows, that hasn't gone that well either.  It's like telling someone to be calm when they are yelling "fire" when the room is burning.

There is some truth there though.  This includes in local legislatures while the Supreme Court handles various constitutional things somewhat badly.

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* With Kavanaugh and all, one can imagine the general feeling about Kennedy in general at a liberal leaning blog, thus the overcompensation that leads to the unpleasant desire to defend the guy.  This is especially seen when people take potshots at his gay/lesbian jurisprudence, down to being mad that same sex marriage wasn't applied to the country at large quick enough and/or with a broad enough opinion. These types would have wanted Loving v. Virginia to be decided in the mid-1950s. 

Kamala Harris Has Her Formal Announcement Rally

I think Liz Warren is a better version of Bernie Sanders, but is too old, less appealing as a candidate (optics etc., which is cosmetic, I know, but her political savvy is also rougher) and best spent where she is. The main concern about Harris is some aspects of her prosecution record are dubious. Don't think that will be enough to doom her. Some will even like it as an example of her realistic playing within the system. Think she's the frontrunner with Gillibrand as an alternative. In fact, curious where Gillibrand will fit since she overlaps with Harris in various respects though she does have the most national experience at this point.

Also: AFC wins again in Pro Bowl. Not much of a game.

SCOTUS Watch

The big news is taking a 2A case for full review after nearly a decade [bound to happen, details up in the air] and letting Trump's trans military ban be applied during litigation. Kavanaugh is likely key here, both not to be decided this term either. The idea is this is a "no drama" term. They will be back mid-February though we might get an order regarding the first execution planned for this year. Red flag for me is the thirty year lag time.

ETA: The Court also set February and March calendars oral argument dates and (eventually) removed an advisory on their rarely used media page after taking the census case off.

"RBG is Kinda Hot ..."

Two people who came in uninitiated (sort of like me with "The Favourite") really liked this film but being so familiar and concerned with her current well being, I was more wary. [An example: given RBG's deep study of Swedish law, her husband's monologue at that party is a tad off.] Sorta was right to be on some level, especially since RBG is just too emotional here. But, on the whole, the film is pretty good and raises some interesting things including on the changing nature of the law. BTW, the opinion was handed down after Reed v. Reed.

ETA: Remember this "gotcha"? The reference is to the original Constitution and it is noted at one point that equal protection as applied to feds was handled by due process. But, to be honest, the line still open to confusion. The final court scene also is a bit much, from her early choking and final speech. Pure Lifetime.

2019 Baseball Hall of Fame (Two Yanks, One RIP and One DH)

I'm a Mets fan these days but props to two Yankees just voted into the Baseball Hall of Fame (not cheating should matter, so support continuing to keep certain people out): Mariano Rivera and Mike Mussina. Mussina (crossword fan) was one of those fairly few long contracts that turned out well and his quiet professionalism is a good model for us all.

Notable Dates ...

There is the ... "has that asshole really been here/only here two years" (1/20), MLK's Birthday (observed) (Robert E. Lee two places) [Kamala Harris announces] and Roe v. Wade day (1/22). Abortion is well trodden subject on this blog; this short article shows one theme (SCOTUS version): the unjust nature of regulations. I like Harris, Gilliband and Klobuchar best now.

ETA: New York passes the Reproductive Health Act.

Another Super Bowl To Skip ...

Didn't really care if the Rams or Saints won but the Rams winning after a late egregious blown call kinda is bad karma. The Pats winning in OT after KC tied it with only a little over a half minute to play with at the end of regulation to do so (won flip in OT, KC never got ball) added insult to injury. But, the Pats in the playoffs vs. Andy Reid ... stacked against ya.

Some Books

The Internet and the library reserve system only increases my ability to find out about and get books while having less time to read them (imagine the 1990s without hours online daily). I received A History of the World in 21 Women, however, just stopping by the library (to get a DVD, but now NYPL only provide them in "hub" libraries). Pretty interesting, if incomplete (most after 1800). This is also how I got The Dutch Wife, a good fictional account of a political prisoner during WWII who became a camp prostitute (she's Dutch and "Dutch wife" is slang for prostitute) as well as a 1970s man suffering that fate (without the prostitution) in Argentina. More to come -- have a pile and more in reserve.

And Also: The War Before the War: Fugitive Slaves and the Struggle for America’s Soul from the Revolution to the Civil War is a somewhat rambling affair that was really about slavery as a whole (which is fine) while being a good brisk read that gives an overall feel of the times. A basic thing to remember is that even if you thought the Fugitive Slave Clause was necessary, with "I really hate slavery, really" comments, it left open some protections, especially of FREE black PERSONS. The response was often a telling treatment of blacks as non-persons.

Religious Freedom Day

Today is Religious Freedom Day and for many that means protecting the rights of various religious believers. This is important and fundamental, but it can be taken too far, resulting in religious favoritism and harm to third parties. As the first link notes, the date is telling: it honors a law passed to protect separation of church and state. "Religious freedom" has various shades. It should cover us all in the process.

Alara Leaves "The Orville" With Her Lipstick Intact

Well, per the most recent episode -- another very good character rich plot from the new season -- she is leaving. Sounds like acting scheduling conflicts. Change is realistic if too bad here since she's a favorite of mine. Due to be replaced by another woman from her planet.

C.B. Strike: The Series [First Three Books]

I enjoyed the books though not being a Harry Potter fan and the t.v. adaption had its good points, especially the actress portraying Robin. Strike had somewhat less of an edge (and was more attractive) than in the book and the episodes as a whole seemed to be missing something. There were many good moments though the last book in particular seemed a bit too compressed here. DVD had three "making of" vignettes, one for each. Worthwhile.

Also: Others are much less gung ho, noting his team's record etc., but here's the argument that the Jets made a good choice for head coach.

New Year, Same Trump ... Will Drips Ever Crack Ceiling?!

Illegitimate "justice" writes a bland first opinion among other SCOTUS actions, released the day of Trump's b.s. speech regarding the wall and the continual shutdown which hurts our country day by day. The same day we learned about big news regarding Trump's campaign manager colluding with the Russians with campaign data used to interfere with our elections. More reason we need to impeach Trump; the alternative is de facto authorization of his actions, making it just politics. Understand the prudential arguments, but opinion holds.

Odds and Ends

The new Cormoran Strike is even longer and as one review notes, tbh, there is "filler" but overall it is an enjoyable read. Perhaps, the fact six hundred plus pages (with a long "talking killer" chapter to explain things) was somewhat quick reading is telling, but there are pleasures to comfort reading too. Giants (Dallas final drive/two point to avoid OT) and Jets (basically no offense; Pats get a bye after Houston choked week before) ended in fairly typical fashion. The Jets QB seems promising though. Browns went from 0 to 7.5 wins. The season premiere of The Orville was cute -- character episode. 2019 is about here and we will soon have the 2020 presidential race. Wish the asshole was gone now. Onward.

Happy Holidays! (Shutdown Edition)

"Federal Panel Of Judges Dismisses All 83 Ethics Complaints Against Brett Kavanaugh"

It is expected and appropriate under current law that the ethical inquiry of Kavanaugh was held to be moot now that he is on the Supreme Court. The process is for lower court judges so there was an overall doomed to fail nature to the affair. But, the order says they are serious allegations (lying to Congress etc. are) and that a copy of the order should be sent to the appropriate investigatory parties, namely congressional committees. So, ball in your court, House Judiciary Committee. There is a certain wariness there, but this isn't over.

ETA: Note that is the title of a NPR article and is misleading in that some might think they did it on substantive as compared to procedural grounds.

Jacqueline Caal, Seven, Statistic (and Symbol)

The death of seven year old Jacqueline Caal is a chance to put out front and center the horrible nature of our border party. "Horrible" is probably too bland. The statistic cited (further backstory added) that over seven thousand people died 1998-2017 is horrendous. But, not enough for some, so Trump amped it up. Some judge those who lived in the past harshly for supporting various bad things. A bit of humility might be warranted.

Supreme Court Watch

The move to have a boring first sex offender "justice" (and what an ass Collins is) term continues. Latest death penalty appeal had no dissent (Sotomayor already flagged the problem with lethal injection protocols recently). The case involved a murder during a burglary. Justice would have been to continue detaining him as was done for over twenty years. This does not seem like a "worse of the worst" type of murder, to cite a basic standard.

Double Jeopardy

[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb..."

While the Supreme Court made clear that it will clean things up regarding the incorporation of the Fines Clause, it is somewhat surprisingly unlikely to overrule the "separate sovereigns" rule regarding double jeopardy. Some flagged this case (and Kavanaugh's potential fifth vote) during the confirmation battle of the sex offender justice (so-called).  But, it is rather unclear if that was a major concern.

Plus, when the issue was Puerto Rico (part of the federal government, so the rule doesn't apply regarding federal/commonwealth prosecutions), RBG flagged her interest in ending it.  Before it seemed like backstop to Trump pardons (someone like Manafort could be prosecuted for state crimes), many of the same people upset might have agreed the rule was dubious. It seems like trick to be able to subject a person twice for the same offense. That is, until there is a push for the feds to prosecute some civil rights crime after a state acquittal (e.g., the Trayvon Martin case).

But, the justices went full bore (Thomas voiced some opposition to the rule too but doesn't ask questions) on the defendant's lawyer with the exception of Ginsburg and later on Gorsuch.  During the Fines argument, Gorsuch sanctimoniously spoke of how most of the incorporation cases were settled back in the 1940s. No.  Other than the First Amendment, the 1960s (e.g., the right to a lawyer) had quite a few.  Here he found it strange the federalism resulted in two bites of the apple in a way that arguably burdened liberty.  When else does that occur?  The government provided examples such as taxes. Overall, as noted by of all people Kagan, the rule furthers federalism, which ultimately involves state power.

It looks there is a clear majority for the idea -- to quote a 1950s pre-incorporation (yes, the 1950s) -- case upholding the dual sovereignty rule that "Precedent, experience, and reason alike support the conclusion" warrants protecting it.  Precedent was cited by Kagan and Breyer as well as newbie Kavanaugh, who cited his strong barrier for changing it.  He also -- against an unwise one-note originalist defense -- noted that stare decisis is an originalist principle.  Yes, which underlines the ultimate limited nature of that whole matter. Plus, clearly few justices are that into it.

Conservative Senator Hatch provided an amicus brief in support of ending the rule in part because of the expansion of federal crimes which reach much more areas that traditionally would be state only.  Consider that even the assassination of JFK was to be a state trial.  There was reference to this concern during the oral argument but it is unclear how much ending the rule will matter.  If the same offense (let's say an abuse police action) will result in two possible prosecutions because of what exactly is charged, however, we still seem to be hairplitting, aren't we?  There is a policy to take into consideration a state prosecution, but we still had double prosecutions of various mass shooters, for example.

In that Puerto Rico case, Justice Thomas cited his concern about applying the rule to cases involving tribes (which already are a limited "sovereign" as is) while also joining RBG's wider concerns.  The bigger issue for the justices, aided and abetted by the originalist argument relying on just that issue (ultimately, he was left saying you could treat domestic cases differently, which is true, but he opened the door) was first applying it internationally.  The nation does have to apply the same rule and the prosecution cannot be a sham.  But, that need not occur for problems to arise, especially regarding punishment and prosecutorial resources.  There is not an exception for a richer sovereign to prosecute again because the first one had to deal with limited resources and perhaps a less skillful attempt.

I was sympathetic regarding ending the dual sovereignty rule since it does seem unjust to try a person twice for an offense.  The idea that it isn't the same offense because a different sovereign is involved doesn't quite gel. After listening to the oral argument, didn't really change my mind.  The factors discussed above suggests too that ending the rule can be done in such a way that the best case scenarios for applying it will arise seldom. Rules often have exceptions. This includes the concern about some rush to the courthouse, where a state or the federal government will lose out in the process. Some mechanism should be possible to avoid this or at least temper the concern. And, with states so much more obligated to follow national rules, including as applied to criminal justice, precedent arguably goes another way too. 

Finally, it is unclear how often this sort of thing would come up, especially if one criminal event can already be the subject of multiple prosecutions, which we can assume can be both state and federal in nature. Precedent is an important thing but so is basic justice.  It is unclear to me that the rule, all things considered, flows to the former. 

Happy Hankukah

Hanukkah this year runs from the evenings of the 2nd until tonight. I again provide this past discussion and wish to find a good book that provides the surrounding history for the general reader. Both the immediate Maccabees revolt and developing holiday.

A More Beautiful and Terrible History: The Uses and Misuses of Civil Rights History by Jeanne Theoharis

I added this book to the side panel. Here is a basic outline.

Lessons of History 

(these should be kept in mind when thinking about today's movements as with the myths below)

[1] Myth of Liberal North (also many long term failures including continual segregation)

[2] Long History of Oppression (no easy solution of simply facing up to problem and it being over)

[3] Media Often Not Helping

[4] Myth of the White Moderate  (civil rights movement generally unpopular including MLK up to his death & beyond)

[5] Breadth of Cause -- Desegregation, Criminal Justice, Economic Justice and Global Justice (Vietnam, colonial movements, world peace etc.)

[6] Young and women not respected  

Lessons from the Montgomery Bus Boycott (general lessons)

[1] Perseverance thru failure

[2] Anger leads to action

[3] Sense of possibility = action

[4] Collective organizing

[5] Disruptiveness

[6] Activism = cost/sacrifice including psychological, economic, family and physical (violence)

[7] Mentoring/community of support important

[8] Learning from experience

[9] Multiple ways used against protests ('few bad apples' ... discredit as commies or outside agitators / only for self ... harassment ... legal) and ways to respond

[10] Value of multiple strategies of resistance

RIP Bush41

I added a couple books on the side panel on the Nelson Mandela trial and myths about the Civil Rights movement. It is helpful to remember the complexities of history, which is surely true with the death of the last credible/legitimately elected Republican president. The negatives are true but so are the more positive aspects of his character and public service.

Thanksgiving and Holiday Display Case Season

Ever since, we have set aside this day to give special thanks to God for the many blessings, gifts, and love he has bestowed on us and our country.

Thanksgiving in this country has a specific connection to an event, involving the Pilgrims and so forth, but the basic idea of a harvest festival or celebration has ancient origins. (The specific event is of limited importance in our traditions and when the holiday was set in the mid-19th Century and beyond, it became more of a general family holiday though we can honor the details.)  This includes something that has a component in which we give thanks and at times there is also a special somber component ("as a day of national humiliation and prayer" etc.).

As with the official one cited, they often have a religious component. Early presidential thanksgiving proclamations provided a chance for an official statement with a religious character within the limits of our secular government.  There were dissents -- Thomas Jefferson felt that such a move was a violation of the First and Tenth (since it was a power left to the states) Amendments.  At the very least, it would seem to me that these things should be inclusive.  The one this year is not.  There is a way, especially since even many who believe in God do not think of the holiday as specifically a religious holiday, to include everyone here.

The presidential proclamation here provides one of various ways that the Trump/Pence Administration can "establish" their breed of evangelical tinged religious belief by official acts.  It is rather minor as compared to let's say providing more exceptions to the contraceptive mandate or something, but I do think it notable. This holiday season -- perhaps we can think of it as a two month span in various respects (Halloween to New Years) has a lot of charming components (including Hallmark Christmas movies), but much diversity.  We should honor that.

I have long focused some on holiday display cases as decided mainly by the Supreme Court.  It is shall we say part of my holiday tradition with Oyez.com allowing me to listen to various oral arguments.  My sympathies are with a separatist position such as spelled out by Justice Stevens: "The Establishment Clause should be construed to create a strong presumption against the installation of unattended religious symbols on public property." In practice, official mixture here will in the long run favor certain religions over others and there are many alternatives to some official creche or menorah etc.  For instance, I recently saw reference to a set of four postage  holiday stamps and there was really no non-religious option though it was pointed out Kwanzaa is in effect a secular holiday.  Perhaps, but not one really of a general character.  And, symbols do have special power.

Thus, the "passive" nature of displays only takes us so far.  There also is a theme in these cases on one side that the test should be some sort of coercion or proselytizing (Justice Kennedy suggested a gigantic cross on a government building could be to much.). But, that has a free exercise character. The Establishment Clause goes further than that. Thus, "We are a Christian Nation" type proclamations might not be "coercive" though in practice there really is a long term overlap once a certain group is favored even if others do not directly are coerced to pray or something. 

With new membership, the state of the law here might be in flux and a ruling involving a gigantic cross might provide further clarification. The current rule appears to be that a display can not be seen to endorse religion. This encourages the usage of diverse displays, a creche standing alone being found to be unconstitutional (if by 5-4).  Stevens' opinion involved one type of case -- localities that tried to specifically not allow religious displays.  This was seen as content/viewpoint discrimination, which I find somewhat dubious given the Establishment Clause provides a special case here.  Interestingly, Justice White took a middle path here in a case involving student groups, another issue that arose repeatedly in some fashion.  He would allow flexibility and that to me seems like a good idea.

To clarify here, the matter involves the government, not private display. It also doesn't involve simply having Christmas as an offiical holiday, which both honors its secualar character while also having a free exercise component (e.g., New York City made the Jewish New Year a school holiday for related reasons).  The latter case involved a public area near the seat of government that provided a chance for various people to put different types of freestanding displays such as a thermometer stating money raised for some charity.  The state didn't want to allow religious displays since it felt that it would be seen to be endorsing it.  The Court divided three ways -- four thought there was no Establishment Clause problem with allowing all displays (including religious ones) and singling out them would be discrimination. Three thought a disclaimer or something would avoid the first problem. Two didn't thnk so, especially the flimsy one available.

Over time, I have been somewhat more accepting of a middle path in things involving the First Amendment.  Some people online in particular have spoken about the first two amendments in such strident terms that it turns me off.  An absolute rule is realistically impossible and practice doesn't recognize it.  The result will be various line drawing anyhow.  So, e.g., Justice Black said "no law means no law" but somehow managed to be in dissent both in a case involving students wearing black armbands and a jacket with "Fuck the Draft" on it. "Freedom of" includes this. 

But, basic concerns should be met and can be done here as well. The endorsement test, however messy along the edges, to me provides a reasonable approach.  I do think a holiday display with a single religion dominating would violate such a test.  Also, some flexibility here makes sense too as referenced earlier.  These cases encourage hypos on each side that suggests both are extreme. In practice, life is a compromise and there is some appropriate middle ground.  It honors federalism in the bargain.  Inclusiveness should be the name of the game. Holidays are for all of us.

Note:  It is sometimes argued that concerns as stated here are in some fashion anti-religious, but this is not my intention though perhaps it might be for some others. Justice Brennan, e.g., was a strong separatist while also repeatedly supporting free exercise more than other justices as well.

Furthermore, the inclusiveness and equality concerns point to a respect for all beliefs. The conservative side arguably is really supportive of religious favoritism or even disrespecting religious belief.  Thus, e.g., Justice Scalia argued a cross can be a general memorial for war dead (the lawyer argued many Jews might disagree) and ignored the nuances of various forms of the Ten Commandments in supporting one as a sort of general symbol. But, and this is seen in the history, many religious people are very concerned with details here. The specific wording of prayers could be a matter of great controversy. Religious freedom also does not just mean some general civic religion that tends to have a certain bland Christian flavor.

And, they will disagree among themselves, including let's say as to the legitimacy of usage of a menorah in a public display.  Likewise, some bland usage to lessen controversy can be argued as a cheapening of religion. The ultimate dividing line is not lack of respect of belief but a difference of opinion on how to do that.

Election Day: Sanity and Bit More (and Less)

It is appreciated that the Dems regained control of the House with some picks in red areas and had some good ballot measures (including multiple states expanding Medicaid) but the trolls winning in the Senate and statehouses (not all confirmed) depresses and angers me. It is not just that many of the Democrats were good candidates but that some of the Republicans were horrible. Well, a few of them, including Kobach did lose. Still, it's tough. We have a long way to go as a country. Full Democratic control of the NY Legislature now.

Update: It's a week after and the election isn't over in various ways, including the Florida Senate race and two key state governor races that influenced my negativity. It is a relief that Sinema seems to have won Arizona after being behind by a percentage the morning after. The Senate cycle was very tough and the Dems (pending Florida) will be either -1 or -2, which tbh is realistically a win especially since Doug Jones was a steal. Tough losses though.